[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10024 JULY 17, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-01955-CV-RLV-1
DENNIS MICHAEL SMITH,
Plaintiff-Appellant,
versus
FEDERAL EXPRESS CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 17, 2006)
Before TJOFLAT, BIRCH and KRAVITCH, Circuit Judges.
PER CURIAM:
Dennis Michael Smith, proceeding pro se, appeals the district court’s grant
of summary judgment in favor of Federal Express Corp. in his employment
discrimination action. After a thorough review of the record, we affirm.
Smith filed a counseled complaint against Federal Express alleging that his
employer failed to meet his request for a reasonable accommodation under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111, and retaliated
against him for making the request and filing a complaint with the EEOC. Federal
Express moved for summary judgment, asserting, inter alia, that Smith was not
disabled, as he did not have an impairment that substantially limited a major life
activity and it never regarded Smith as disabled, and Smith could not establish a
retaliation claim, as there was no causal connection between his request and his
termination.
The district court granted summary judgment, finding that (1) Smith was not
disabled because (a) he did not have an impairment that substantially limited a
major life activity, as he had no work restrictions and there were other jobs he
could perform, and (b) Smith was not regarded as disabled; and (2) Smith could
not establish retaliation because, even assuming that he satisfied the prima facie
case, Smith failed to show that Federal Express’s legitimate, non-discriminatory
reasons were a pretext for discrimination in light of his disciplinary history and the
fact that he missed two consecutive work shifts. Smith moved for reconsideration
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or rehearing, which the court denied as untimely and without merit. Smith now
appeals.
On appeal, Smith argues that the district court ignored evidence that Federal
Express retaliated against him for invoking his ADA rights, and that the court
incorrectly determined that he was not disabled under the ADA, as he contends he
had a record of disability.
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the party opposing the motion. Cruz v.
Publix Super Mkts., Inc., 428 F.3d 1379, 1382 (11th Cir. 2005). Summary
judgment is appropriate if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Eberhardt v. Waters, 901 F.2d
1578, 1580 (11th Cir. 1990). Once the party seeking summary judgment meets its
burden of showing the absence of a genuine issue of material fact, the burden shifts
to the non-moving party to submit sufficient evidence to rebut the showing with
affidavits or other relevant and admissible evidence. Avirgan v. Hull, 932 F.2d
1572, 1577 (11th Cir. 1991). Mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion. Ellis v.
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England, 432 F.3d 1321, 1326 (11th Cir. 2005). “Moreover, statements in
affidavits that are based, in part, upon information and belief, cannot raise genuine
issues of fact, and thus also cannot defeat a motion for summary judgment.” Id.
(citation omitted).
The ADA forbids covered employers from discriminating “against a
qualified individual with a disability because of the disability of such individual in
regard to . . . discharge of employees.” 42 U.S.C. § 12112(a) (2000). To establish
a prima facie case of discrimination under the ADA, a plaintiff must demonstrate
“that (1) he has a disability, (2) he is a ‘qualified individual,’ which is to say, able
to perform the essential functions of the employment position that he holds or
seeks with or without reasonable accommodation, and (3) the defendant unlawfully
discriminated against him because of the disability.” D’Angelo v. ConAgra Foods,
Inc., 422 F.3d 1220, 1226 (11th Cir. 2005). The same burden-shifting analysis
under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973), applicable to other employment discrimination suits applies to
ADA claims. Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1226 (11th
Cir. 1999).
A. Discrimination
Under the statute, disability is defined as “(A) a physical or mental
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impairment that substantially limits one or more of the major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having
such an impairment.” 42 U.S.C. § 12102(2).
As an initial matter, the only issue properly before this court is whether
Smith established that he had a physical impairment that substantially limits one or
more of the major life activities.1 Smith does not challenge the district court’s
decision that he was not “regarded as” disabled, and, therefore, he has abandoned
that claim. Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998).
Moreover, Smith argues for the first time on appeal that he had a “record of”
disability, and, therefore, we need not consider that argument. Narey v. Dean, 32
F.3d 1521, 1526-27 (11th Cir. 1994).
This court has held that work can be treated as a major life activity. See,
e.g., Carruthers v. BSA Adver., Inc., 357 F.3d 1213, 1216 & n.2 (11th Cir. 2004).
According to the Supreme Court, “[w]hen the major life activity under
consideration is that of working, the statutory phrase ‘substantially limits’ requires,
at a minimum, that plaintiffs allege they are unable to work in a broad class of
1
A physical impairment is “[a]ny physiological disorder, or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the following body systems: . . .
cardiovascular.” 29 U.S.C. § 1630.2(h)(1). Arguably, Smith’s bypass and subsequent cardiac
monitoring is a disorder affecting his cardiovascular system.
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jobs.”2 Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 144
L.Ed.2d 450 (1999). The inability to perform a single, particular job does not
constitute a substantial limitation in the major life activity of working. Id., 527
U.S. at 492; 29 C.F.R.§ 1630.2(j)(3)(i); Stewart v. Happy Herman’s Cheshire
Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997). Additionally, the inability to
work a single shift does not qualify as a disability. Colwell v. Suffolk County
Police Dept., 158 F.3d 635, 644-45 (2d Cir. 1998).
Here, the evidence established that Smith was able to perform a wide range
of jobs, including the one for which he was hired. Smith himself testified that he
had no work restrictions, and his physician’s note indicated that Smith could work
the AM shift. Smith disputes that the note included the Sunday (or graveyard)
shift, but there is no evidence to support his assertion other than his own self-
serving statements, which cannot defeat Federal Express’s summary judgment
motion. Ellis, 432 F.3d at 1326. Moreover, the evidence established that Smith
held down another job and took classes during the relevant time period.
2
An impairment is “substantially limiting” when the individual is:
(i) unable to perform a major life activity that the average person in the general
population can perform; or (ii) significantly restricted as to the condition, manner or
duration under which an individual can perform a particular major life activity as
compared to the condition, manner, or duration under which the average person in
the general population can perform that same major life activity.
29 C.F.R. § 1630.20(j)(1).
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Furthermore, Smith’s difficulty with the Sunday shift is likely the same for
everyone, and, therefore, should not be the basis of a disability claim. See
Rossbach v. City of Miami, 371 F.3d 1354, 1359 (11th Cir. 2004) (explaining that
allegations that were “couched in vague terms and unaccompanied by any evidence
that the described afflictions were any worse than is suffered by many adults” did
not establish substantial limits on a major life activity); Colwell, 158 F.3d at 645.
Therefore, the court properly concluded that Smith was not substantially limited in
the major life activity of work, and accordingly, was not disabled.
B. Retaliation
The ADA also provides that “no person shall discriminate against any
individual because such individual has opposed any act or practice made unlawful
by [the ADA] or because such individual made a charge . . . under [the ADA].” 42
U.S.C. § 12203(a). This provision creates a prohibition on retaliation under the
ADA that is similar to Title VII’s prohibition on retaliation. Stewart, 117 F.3d at
1287. To establish a prima facie case of retaliation, Smith must show that he
engaged in statutorily protected conduct; that he suffered an adverse employment
action; and that there was a causal connection between his conduct and the adverse
action. Williams v. Motorola, Inc, 303 F.3d 1284, 1291 (11th Cir. 2002).
Assuming, as the district court did, that Smith established a prima facie case
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of retaliation, he nevertheless is not entitled to relief because he has not shown that
the legitimate, non-discriminatory reason for Federal Express’s conduct was a
pretext for discrimination.
The evidence showed that Smith repeatedly refused to come to work and that
he had two consecutive absences without proper documentation, in violation of
Federal Express’s policies. The evidence also showed that the policies forbade
Smith from rebidding another position for a certain period of time after accepting
the AM shift. Smith knew of these policies because he had received a copy of the
employee handbook. Thus, under its policies, Federal Express had legitimate, non-
discriminatory reasons for Smith’s discharge and the disciplinary actions taken
against him. Smith has offered nothing except his own allegations to show that
this was a pretext for retaliation. Accordingly, summary judgment was proper on
this claim as well.
For the foregoing reasons, we AFFIRM.
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